OSWALD LEWIS, Plаintiff, v. RYAN WESTFIELD, BRIAN BANKS, CHRISTOPHER BARTOSH, ANTHONY DINEEN, and ROBERT LEDOGAR, Defendants.
16-CV-1057 (RPK) (TAM)
UNITED STATES DISTRICT COURT EASTERN DISTRICT OF NEW YORK
November 14, 2022
RACHEL P. KOVNER, United States District Judge
Case 1:16-cv-01057-RPK-TAM Document 181 Filed 11/14/22 PageID #: 4516
RACHEL P. KOVNER, United States District Judge:
Plaintiff Oswald Lewis brings claims under Bivens v. Six Unknown Named Agents, 403 U.S. 388 (1971), against several Deputy United States Marshals, alleging excessive force and failure to intervene to prevent excessive force. While Lewis‘s claims were pending, the Supremе Court held that Bivens did not provide an implied damages action to a plaintiff raising an excessive force claim against a Customs and Border Patrol agent. See Egbert v. Boule, 142 S. Ct. 1793 (2022). At the Court‘s invitation, the parties submitted briefs addressing whether Egbert forecloses Lewis‘s Bivens claims. Because Egbert does foreclose those claims, they are dismissed.
BACKGROUND
In 2014, defendants Ryan Westfiеld, Christopher Bartosh, Brian Banks, Robert Ledogar, and Anthony Dineen—all Deputy United States Marshals—participated in plaintiff‘s arrest in Queens. See Defs.’ Local Rule 56.1 Statement ¶¶ 7-10 (Dkt. #57-3) (“Defs.’ Statement“); Decl. of Kevan Cleary, Ex. 8 (Dkt. #57-6). The deputies arrestеd Lewis pursuant to an arrest warrant. See Defs.’ Statement ¶ 5; Pls.’ Opp‘n to Defs.’ Local Rule 56.1 Statement ¶ 5 (Dkt. #58-1) (“Pl.‘s Statement“).
Lewis, in cоntrast, asserts that he was shot while unarmed. Pl.‘s Statement ¶ 31. He asserts that after he surrendered to officers, Westfield kicked him numerous times in the face. Id. ¶ 40; Pl.‘s Affirmation ¶ 7 (Dkt. #58-2). Lewis alleges that the other defendants failed to intervene to prevent Westfield from using excessive force against him. See Pl.‘s Affirmation 3 ¶ 7; Order Adopting in Part Report and Recommendation 20-24 (Dkt. #67) (“Summary Judgment Order“).
In a criminal case in this district, Lewis was convicted of assaulting the arresting officers with a deadly weapon, unlawfully discharging and possessing a firearm, and doing so while a fugitive and a previously convicted felon. He was also convicted of possessing a firearm with an obliterated serial number. See Judgment, United States v. Lewis, No. 14-CR-523 (ILG) (E.D.N.Y. Oct. 20, 2016), Dkt. #170.
In 2016, Lewis filed this civil lawsuit alleging constitutional violations in connеction with his arrest and prosecution. Judge Matsumoto, the then-assigned district judge, dismissed plaintiff‘s claims against the Bureau of Alcohol, Tobacco, Firearms, and Explosives and the United States Marshals Service (“USMS“). See Judgment (Dkt. #75). She then granted summary judgmеnt to the individual defendants on all claims except for the excessive-force claim against Westfield pertaining to the alleged use of force after Lewis was handcuffed, and the claims that Bartosh, Banks, Ledogar, and Dineen fаiled to intervene in that alleged use of force by Westfield. See Summary Judgment Order 32-34.
STANDARD OF REVIEW
Summary judgment is appropriate when “there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.”
Plaintiff proceeds pro se. A court “is ordinarily obligated to afford a special solicitude to pro se litigants . . . particularly where motions for summary judgment are concerned.” Harris v. Miller, 818 F.3d 49, 57 (2d Cir. 2016) (quotation marks and citations omitted). A court must “liberally construe” documents “submitted by pro se litigants, reading such submissions to raise the strongest arguments they suggest.” McLeod v. Jewish Guild for the Blind, 864 F.3d 154, 156 (2d Cir. 2017).
After Egbert, Lewis‘s Bivens claims cannot succeed. Lewis‘s excessive-force and failure-to-intervene claims рresent a new context under Bivens. And special factors counsel against recognizing a new judicial remedy for the constitutional violations Lewis alleges. Accordingly, Lewis‘s remaining claims are dismissed.
I. Bivens Framework
Civil damages for constitutional violations are available against federal officers only in limited circumstances. Congress has not enacted a statute providing for such damages. However, in 1971, the Supreme Court recognized an implied cause of action to seek damages for one such violation: a Fourth Amendment claim against federal narcotics officers arising out of their warrantless arrest of a man in his home. Bivens, 403 U.S. at 389. The Court recognized two more implied damages actions in the decadе that followed. See Davis v. Passman, 442 U.S. 228, 248-49 (1979); Carlson v. Green, 446 U.S. 14, 18-23 (1980). Afterward, though, the Supreme Court “came to appreciate more fully the tension between this practice and the Constitution‘s separation of legislative and judicial power.” Hernandez v. Mesa, 140 S. Ct. 735, 741 (2020). As a result, it has held that the “expansion of Bivens is a disfavored judicial activity.” Id. at 742 (internal quotation mаrks omitted). And it has “consistently refused to extend Bivens to any new context or new category of defendants” for over forty years. Ziglar v. Abbasi, 137 S. Ct. 1843, 1857 (2017) (internal quotation marks omitted).
Under the Court‘s most recent decisions, determining whether a plaintiff may bring an implied damages action against fedеral officers for the violation of a constitutional right requires a two-step inquiry. First, the court should “ask whether the case presents ‘a new Bivens context‘—i.e., is it ‘meaningful[ly]’ different from the three cases in which the Court has implied a damages
The Court applied these principles in Egbert to foreclose an implied Fourth Amendment damages action against a Customs and Border Patrol agent who had allegedly used excessive force against the plaintiff while investigating possible immigration violations. At the first step of the Bivens analysis, the Court held that the claim presented a new Bivens context. At the second step, the Court held that there was reason for courts to hesitate before recognizing an implied damages action against the defendant, because Congress was better positioned than the judiciary “to create remedies in the border-security context” and because “the Government already has provided alternative remedies” to individuals such as the plaintiff. Ibid.
II. A Bivens Claim Is Unavailable Here
These principles foreclose the recognition of a Bivens cause of action for Lewis‘s excessive-force and failure-to-intervene claims. Lewis‘s claims arise in a new Bivens context and present special factors counseling hesitation. Defendants are thus entitled to summary judgment.
Lewis‘s claims arise in a new Bivens context. New contexts include cases that “involve[] a ‘new category of defendants,‘” Egbert, 142 S. Ct. at 1803 (quoting Corr. Servs. Corp. v. Malesko, 534 U.S. 61, 68 (2001)), or differences in
the rank of the officers involved; the constitutional right at issue; the generality or specificity of the official action; the extent of judicial guidance as to how an officer should respond to the problem or emergency to be confronted; the statutory or other legal mandate under which the officer was operating; the risk of disruptivе intrusion by the Judiciary into the functioning of other branches; or the presence of potential special factors that previous Bivens cases did not consider.
Plaintiff‘s excessive-force and failure-to-intervene claims present a new Bivens context. The dеfendants are Deputy Marshals, rather than federal narcotics agents. See Egbert, 142 S. Ct. at 1804 (accepting court of appeals‘s conclusion that Fourth Amendment excessive-force claim against Customs and Border Patrol agent “presented a new context for Bivens purposes“); Boule v. Egbert, 998 F.3d 370, 387 (9th Cir. 2021) (finding new context because defendant was “an agent of the border patrol rather than of the F.B.I,” even though both types of agents are “federal law enforcement officials“); see also, e.g., Edwards v. Gizzi, No. 20-CV-7371 (KMK), 2022 WL 309393, at *7 (S.D.N.Y. Feb. 2, 2022) (lawsuit against Deputy U.S. Marshals presented new context because “the officers involved in Bivens were federal narcotics agents” and therefore part of “an investigatory and enforcement force,” rather than members of the U.S. Marshals Service); Martinez v. D‘Agata, No. 16-CV-44 (VB), 2019 WL 6895436, at *7 (S.D.N.Y. Dec. 18, 2019) (finding a “meaningful difference” between Bivens and case at hand because “the type of officers involved in Bivens were DEA agents, whereas here the officers were appointed members of a federal task force“). In addition, the defendants here acted under a different “legal mandate” than thе defendants in Bivens. Ziglar, 137 S. Ct. at 1860. While the officers in Bivens were attempting
These differences establish that Mr. Lewis‘s claims present a new context.
B. Special Factors
The existence of alternative remedial schemes counsels against extending Bivens to plaintiff‘s claims. In Egbert, the Supreme Court held thаt the existence of alternative remedial schemes is a special factor that counsels hesitation in extending Bivens—even with respect to extensions involving Fourth Amendment claims in “the common and recurrent sphere of law enforcement.” Egbert, 142 S. Ct. at 1805 (internal quotation marks omitted). The Court in Egbert found alternative remedies in a statute requiring the Border Patrol to “control, direc[t], and supervis[e]” its employees, id. at 1806 (quoting
Comparable remedial schemes counsel hesitation here. The Director of the Marshals Service is statutorily obligated to “supervise and direct the United States Marshals Service in the performance of its duties.”
Egbert made clear that remedial schemes of this sort “foreclose a Bivens action,” because “[s]o long as Congress or the Executive has created a remedial process that it finds sufficient to secure an adequate level of deterrence, the courts cannot second-guess that calibration by superimposing a Bivens remedy.” Egbert, 142 S. Ct. at 1806-07. Accordingly, this Court may not extend Bivens to provide an implied civil damages action for Lewis‘s claims against Deputy Marshals in this case.
Lewis‘s claims for excessive force and failure to intervene under Bivens are dismissed. The Clerk of Court is respectfully directed to enter judgment in favor of defendants and close this case.
SO ORDERED.
/s/ Rachel Kovner
RACHEL P. KOVNER
United States District Judge
Dated: November 14, 2022
Brooklyn, New York